UK Family Law Reform

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Fam Law [2004] 835

November 2004

Newsline Extra

Family Resolutions v Early Interventions

The EI project is not being taken forward:

Mavis Maclean’s exposition of the family resolutions pilot project ([2004] Fam Law 687) provides the answer to the question – whatever happened to the early interventions project (EI project)? The EI project, formally submitted to the Department for Education and Skills (DfES) and the Department for Constitutional Affairs (DCA) on 8 October 2003, after 8 years’ development, was fully specified, properly designed and costed. It commanded across-the-board professional support. The position at that time was clear cut:

‘The need was not so much for an open ended inquiry into what to do but the more proactive task of ensuring that an early interventions trial … actually occurred.’ ([2003] Fam Law 455)

A close study of the EI project, as submitted, and the family resolutions project (FR project) described a year later, does not disclose any significant similarities between the two.

This is not what was meant to happen. ‘Family Resolutions’ was billed as ‘Early Intervention’ under a different name. In the words of DCA Minister, Lord Filkin, in a letter to the Coalition for Equal Parenting, dated 29 April 2004: ‘The early interventions project, developed by the [organisation] New Approaches to Contact (NATC) and others, is being developed and taken forward’. This letter, which first introduced a sentiment repeated in Mavis Maclean’s article, explained the technical reason why the project was ‘renamed the Family Resolution Project’, namely that ‘whilst the intended intervention is early in the current court process, it is not early in the process of relationship breakdown’.

So what are the differences between the two projects? And do they matter? The core of the EI initiative hinged upon giving parents guidance, before the case, on how much contact there should be. This development, which finds no counterpart in the FR project, entailed a new partnership between the courts and child development experts. Together they would devise parenting plans which would set out norms of contact as a framework for negotiation. Judicial support for the concept of parenting plans always lay at the heart of the EI project. Without backing from the court, any guidelines would be written in water. As Bracewell J observed, summarising the NATC’s 2003 conference in its publication Early Interventions – Towards a Pilot Project: ‘This is the way forward … It would be incomprehensible if the pilot project did not receive official sanction from the DfES’.

But the incomprehensible did happen. On examination, it transpires that the FR project is based upon a well-rehearsed mantra –‘every case is different’ – which is the antithesis of EI.

Bringing the two projects into alignment would not be a simple matter of changing horses midstream. This is not just because the Children and Family Court Advisory Support Services (CAFCASS), which will apply conciliation under the FR pilot, has confirmed its stance that ‘every case is different’. Its view that there are no categories of case (see Contact: Principles Practice Guidance and Procedures (CAFCASS, 16 August 2004)) means that there can be no parenting plans outlining what should happen in the various case categories. Equally important, every component and every protocol of the two divergent projects are designed for a different function. The EI parenting plans would not be agreed by the court and its experts, nor be backed by the court, nor be issued by the court, nor be applied by the court, nor be disseminated by the court. Nor could they take root throughout ancillary support services such as mediation, legal professionals and potential litigants.

This does not mean that the FR project is not a useful undertaking in
its own right. The pre-court group sessions – one ‘to refocus on the child’s needs’ and the other, on ‘conflict management’ – could pay dividends. FR is also bound to yield valuable data on how much can be achieved by a careful repackaging of the existing regime. But by the same token it is not the same as the EI project.

Perhaps the least useful outcome would have been a half-way house where a sound concept was marred by poor construction or indifferent management; or where a slipshod version of the new thinking was adopted. The FR project eliminates this risk. There is no overlap between the two projects.

This means that the way remains clear to pilot the EI project as originally designed and agreed. The two pilots (EI and FR) could run side by side as distinct comparative exercises at different courts. This could not come too soon, not least because the support for EI, which was sufficient to secure its submission, acceptance, ministerial assent and funding, has not abated. Written statements of support are on the record from the President of the Family Division (Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18, [2004] 1 FLR 1279, at para [12]), the High court judiciary (Munby J (Re D (Intractable Contact Dispute: Publicity) [2004] EWCH 727 (Fam), [2004] 1 FLR 1226, at paras [37]–[38]), Bracewell J (Early Interventions: Towards a Pilot Project (NATC, July 2003)), the Family Law Bar Association (by letter to the DfES Project Chair (9 March 2004)), Solicitors Family Law Association Chair ((2004) 104 SFLA Review 12), the Coalition for Equal Parenting (by letter to the DfES Project Chair (29 March 2004)), and Dr Hamish Cameron (Early Interventions: Towards a Pilot Project (NATC, July 2003)).

The Green Paper, Parental Separation; Children’s Needs and Parents’ Responsibilities, Cm 6273 (2004), adopts, at paras 4 and 55, the EI concept of time linked parenting plans as the key to resolving contact disputes. In line with the ministerial view on the continuity between the FR and EI projects, parenting plans are proffered as the backbone of the government’s s 8 reform project. Hence the conundrum of the present situation: the FR pilot – produced by civil servants – does not have the prime characteristic supported by the Cabinet - but the civil servants have not produced the EI pilot, which does have the prime characteristic supported by the Cabinet. The inference – that EI lost its way in Whitehall’s bureaucracy – is borne out by the project’s history. Put forward as a fully articulated concept ready for installation, it has not been seen since.

Should the FR project have been produced in-house by civil servants? After, as the author is aware, the DCA forwarded the EI project to the DfES for implementation – intact, approved and with a plan for external local management – the DfES then set up its own in-house design team. This curious step (for a project where the design had already been finished) had a marked consequence. By the time the DfES design team first met in March 2004, knowledge of what the project was about had been lost. Core EI documents did not reach the DfES project manager until May 2004 when the project was nearing completion.

How did this happen? One answer is that ‘Family Resolutions’ is the name of an old CAFCASS project which was undefined and unfunded. From the moment the EI project first went to the DCA in the autumn of 2003 it became evident that EI would attract funding. CAFCASS was well placed to claim EI as ‘its’ project.

It is the author’s understanding that the customary procedure would have been to commission the project out to an independent management agency which would have retained the project originators. Had this happened, the EI pilot could and would have been up and running by September 2004.

Independent management adds commitment and expertise and removes the project from the political (in its broadest sense) arena. Under independent control, turf wars, demarcation disputes and extraneous considerations of institutional prestige should abate. Perhaps such a solution will have been adopted, or be in the offing, by the time these words find their way into print.

Caroline Willbourne, Barrister, One Garden Court, Temple, London

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